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Will of voters should not guide judges

"Terry Branstad [Iowa's governor-elect] suggested Monday new members of the Iowa Supreme Court
should follow the will of voters who removed three justices in the
November judicial retention election.

"If that means choosing
judges based on how they will decide civil rights cases, that is the
wrong lesson to draw from the election: Judges should never be
discouraged from protecting the rights of minorities based on popular
opinion of the electorate.

"The Bill of Rights in the Iowa
Constitution - as in the federal model - was created to protect
minority rights from the tyranny of the majority. If Iowa judges put
their fingers into the wind on such cases, as Governor-elect Branstad
seems to suggest they should, we might as well replace courts with
public referendums.

"Though the judicial retention election is over, questions about
judicial independence still loom as the State Judicial Nominating
Commission prepares to interview candidates to replace the three
justices. It is almost certain that process will not be complete until
after Branstad takes office in mid-January. Thus, his views on the role
of judges in a constitutional government are important.

"Branstad's comments at a forum at the Iowa Capitol Monday are not
reassuring. He said the Iowa Supreme Court 'made a tragic mistake in
their decision on marriage equality.' He said the nominating commission
should keep in mind that 'the voters overwhelmingly rejected three
members of the Supreme Court, and I think they want a change in the
philosophy of the court.' He said Iowans want judicial restraint. One
translation: No more rulings like the one on the freedom to marry.

"Branstad said he
would not ask nominees about their views on marriage for same-sex couples, but he
would ask them about the principle of separation of powers between the
legislative, judicial and executive branches. That's fine, except that
based on his comments Monday, Branstad himself does not appear to
understand the distinction: 'They need to respect that on issues like
this, it's really the Legislature that has the responsibility,' he said
Monday, 'and if the Legislature has made a mistake, the courts can
indeed send it back to the Legislature to be corrected.'

"That
presumes it would be possible to fashion a law limiting marriage to a
man and a woman that would satisfy the equal-protection clause of the
Iowa Constitution. There is nothing preventing the Legislature from
attempting that impossible feat, but until it does, the old law has
been voided by the court."